PHMSA Finalizes Rule to Incorporate Proven Special Permits into the Hazardous Materials Regulations


On January 21, PHMSA published its final rule implementing the MAP-21 requirement to review all special permits (SP) in effect for more than 10 years and incorporate those that have proven effective into the HMR.   This MAP-21 provision was a priority of IME.
IME’s comments to the docket expressed concern that PHMSA did not plan to annually propose incorporations of proven SPs on an annual basis as was congressional intent.  The agency responded that it would identify, on an annual basis, SPs that are appropriate for incorporation and propose a rulemaking or those that are not.  However, finalizing the rulemakings may take longer than a year. 
Technically, PHMSA does not have to do this for another nine years since they reviewed all active SPs for this docket.  However, now that this rule is out, PHMSA intends to relook at the SPs stakeholders asked to be reconsidered because they were not proposed for incorporation and those they proposed but realized they needed more information.  These SPs are the most likely candidates for the next incorporation rule. 
IME supported incorporating six SPs into the HMR, two which had been identified by PHMSA as candidates for incorporation (SP-4850 & SP-12335), and four that had not (SP-8451, SP-10880, SP-1156, & SP-14282).  In the final rule, PHMSA incorporated only one of SPs – SP-12335.  PHMSA dropped SP-4850 “based on concerns that certain elements in its codification no longer communicated the exceptions from the HMR provided by the SP.”  As a result, PHMSA believe that additional notice and comment would be required.  The other four SPs were not adopted because they were “not proposed for adoption in the NPRM.”  No additional analysis was provided.  In the end, seven SPs proposed for adoption were not adopted in the final rule, and four SPs that were not proposed for adoption were adopted.